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Intermediaries May Not Be Exempt in Copyright Infringement Cases

A recent New York Times article highlighted the case of the British student, Richard O’Dwyer, who is the subject of an extradition order to the U.S. on criminal copyright infringement charges for distributing pirated movies and television programs.  Our campuses should keep an eye on this case.

 In 2008, O’Dwyer set up a web site,, which allowed users to search for and link to other sites that contained movies and television programs.  Some of the links led to legal sources, others to unauthorized sites. was registered in the U.S. and, therefore, was subject to U.S. law.  In 2010, the government shut down citing copyright infringement.  O’Dwyer soon reopened his site as, thinking it was beyond the reach of U.S. law.  The site earned approximately $230,000 in advertising revenues.  When O’Dwyer received DMCA takedown requests, he did remove links to infringing content.

The document from the U.S. Attorney's Office for the Southern District of New York reads:

“TVSHACK.NET, a linking site, advertises itself as a user-friendly video sharing site. TVSHACK.NET's homepage contains a list of the seven movies and television shows -- all copyrighted and being distributed by TVSHACK.NET without authorization -- that are most popular with the website's users. ….. TVSHACK.NET had approximately 486,000 visitors per month as of May 2010.”

O’Dwyer’s lawyers contend that linking to other content is not illegal under U.K. law, and emphasize that Britain's Crown Prosecution Service did not pursue charges against him. However, the British home secretary approved the extradition order to the U.S. in March and said recently that she would let the order stand.

So what does this all mean?  What is key is that the did not actually provide content, but rather provided links to sites that did so.  Generally linking is not considered to be infringement, but a few courts have held that links violate the law if these point to illegal material with the purpose of disseminating that illegal material.  Chilling Effects lists several such cases:

  • In the DeCSS case, Universal v. Reimerdes, the court barred 2600 Magazine from posting hyperlinks to DeCSS code because it found the magazine had linked for the purpose of disseminating a circumvention device. The court ruled that it could regulate the link because of its "function," even if the link was also speech.
  • In another case, Intellectual Reserve v. Utah Lighthouse Ministry, a Utah court found that linking to unauthorized copies of a text might be a contributory infringement of the work's copyright. (The defendant in that case had previously posted unauthorized copies on its own site, then replaced the copies with hyperlinks to other sites.)

The other issue to consider is that in going after overseas websites that are suspected of copyright infringement, this case is unique in its efforts to pursue the intermediary (i.e., O’Dwyer).  As the New York Times reports, O’Dwyer’s proponents say his site was effectively a search engine. To prosecute him, they argue, would set a dangerous precedent — tantamount to holding one person accountable for the acts of another.

The outcome of the case is not yet known, but the issues it raises bear watching by our campus communities.

EDUCAUSE will continue to monitor and report on this issue.

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